Wednesday, April 9, 2008

In July 2007 punk princess Avril Lavigne found herself in a storm of controversy when '70s power pop band The Rubinoos claimed Lavigne's 'Girlfriend' stole from their song 'I Wanna Be Your Boyfriend'. Across the Internet, amateur musicologists listened to the songs and made their judgements about the validity of the accusation, with opinions varying wildly on the subject.

Avril countered the accusation by saying she'd never heard of the Rubinoos. This is almost certainly true, as we are talking about the same woman who in 2003 mispronounced the name of rock icon David Bowie when announcing Grammy nominees. If she can't get Bowie's name right then it's fair to assume she's unlikely to know the band that did the theme song to Revenge of the Nerds.

What was all the fuss about?

For the Lavigne-loving public these accusations were an unwarranted outrage, and an unfair dismissal of her talents. For those in the anti-Avril camp the claims supported their position that Lavigne was more pop tart than punk princess.

In her defence Avril pointed out both songs are essentially similar to the Rolling Stones 'Get off my Cloud' and the Ramones 'I Want to be your Boyfriend.' So if anyone should be angry it should be Sir Mick. Luckily for Lavigne he's too busy being a rich old rock star to care. Besides, according to Avril, the ''Sid Vicious for a new generation'', "All songs share similar lyrics and emotions. As humans we speak one language."

What were the consequences?

Unfortunately for Avril, over the next few weeks more accusations surfaced, with a former writing partner first claiming, then retracting another plagiarism claim. To add to the grief people also noticed similarities between her song 'I Don't Have to Try' and the Peaches tune 'I'm the Kinda.'

Perhaps Lavigne's greatest defence against claims of stealing a '70s rock song is her well-documented ignorance of pretty much any music released before 1995. She once said, "People are like, 'Well, she doesn't know the Sex Pistols.' Why would I know that stuff? Look how young I am. That stuff's old, right?"

intellectuals had argued that the enlightenment was grounded on the free exchange of ideas — ideas that belonged to the world and not to the individuals who discovered them. This was a view eloquently expressed in 1776 by the marquis de Condorcet. Individuals could not own ideas as they did property, he argued. "There can be no relationship between property in ideas and that in a field, which can serve only one man. [Literary property] is not a property derived from the natural order ... It is not a true right, it is a privilege" [7]. As a consequence, copyright existed to protect the free exchange of ideas, not the rights of authors [8].

This view, however, was soon overwhelmed in 1788-89 by the Revolution. In the Declaration of the Rights of Man, the National Assembly officially sanctioned freedom of the press. Without effective copyright, the freedom was wild and destructive. Anonymous and seditious pamphlets appeared throughout the country; piracy of literary works was rampant; publishers faltered and became insolvent. Officials recognized the need to act, but they debated endlessly, ensnared by the politics of censorship in the midst of the Revolution’s turmoil [9].

As early as 1790, Condorcet himself cosponsored a proposal that provided copyright for the author’s life plus ten years. The proposal violated the principles Condorcet had declared just 14 years earlier, but he now had another goal in mind following the Revolution (to make authors accountable for what they wrote). His proposal did in fact place some limitations on literary property, but not surprisingly, these were widely criticized by the Paris Book Guild and the royally privileged theatre directors. Once again, they used author rights as their central argument [10]. The proposal never came to a vote.

Astonishingly, after the original sponsors departed, almost exactly the same measure was passed into law in 1793 without discussion, partially propelled by the revolutionary call to respect individual rights and property. French copyright law was a compromise: The law sanctioned the notion of literary property, yet it limited such property and created the notion of public domain. It gave something to those with corporate interests in literary property, but it also took something away. And during the nineteenth century those corporate interests worked steadily to take back whatever they had lost.

Some claim that French copyright law was born in the Revolution as droit d'auteur — author rights. But French copyright continued to change for one-hundred years following the Revolution (Ginsburg, 1990). What was initially an uneasy compromise between the philosophies of Diderot and Condorcet slowly became dominated by the notion of author and moral rights, until copyright became synonymous with droit d'auteur in France.

In my comments to students after an oral argument on the cross motions for summary judgment on the legal writing problem that inspired this site, I suggested that the idea (advanced by counsel for the plaintiffs) that the KLF would pursue a copyright infringement action against anyone who appropriated K Cera Cera seemed pretty far-fetched. It would take too much nerve for an appropriator to sue someone for appropriation, wouldn't it? Perhaps not, at least in the case of Shepard Fairey.

"It's an amazing thing that we've reached a place in the entertainment industry where a 15-year-old Disney firecracker could outsell 'The Boss,' that the kid who plays Harry Potter could make more money in a year than Jennifer Aniston and Sandra Bullock," said Lea Goldman, senior editor of Forbes. "Kids are where it's at today. Tweens wield mighty, mighty power in the marketplace."

Like many others in entertainment, [Miley] Cyrus is probably better known for her character's name, Hannah Montana, than her real name. However, the name "Hannah Montana" is owned by Disney, which controls all aspects of its use and pockets much of the earnings.

"Miley is unusual in that much of her earnings are under a Disney-owned brand, that of Hannah Montana," Goldman said. "This is a Disney property. That means Disney enjoys ownership of all the rights and royalties associated with the brand."

Syracuse popular culture professor Robert Thompson agrees.

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

That's why the teen star whose full name is Destiny Hope Cyrus - Miley is a nickname - is known more as Hannah Montana. On her second music recording, a two-disc follow-up to her Hannah Montana soundtrack, Cyrus uses her full name on the second disc. Beyond that, her official Web site (mileyworld.com) and her live television appearances as herself, Cyrus is Hannah Montana to the public.

Goldman said that Disney is well aware that Hannah Montana would not exist without Cyrus, "and she is well-compensated. But Miley wouldn't be Miley without Hannah."

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About this Blog

This blog is an ongoing exploration of issues related to copyright and fair use in our contemporary digital culture.The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. The students wrote cross-motions for summary judgment in a fictional lawsuit brought by the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the real-life creators of an actual recording entitled "K Cera Cera."K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The second half of the students, of course, represented the Defendants.In the course of the students' work in researching and writing their summary judgment briefs, the professor and the students posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense.The relevant documents the students had to work from were the following: